§ 7.3 - Processes for Annexation

• Jurisdiction: Washington

§7.3 PROCESSES FOR ANNEXATION

Annexation is the way in which municipalities increase their boundaries by adding unincorporated county territory, that is, territory not within the boundaries of an existing city or town.

The procedures for annexation differ for code cities operating under Title 35A RCW, the "Optional Municipal Code," and for first- and second-class cities and towns operating under Title 35 RCW. All cities and towns have statutory authority to annex "[a]ny portion of a county not incorporated as part of a city or town but lying contiguous thereto." RCW 35.13.010; see RCW 35A.14.010; see also Evergreen Trailways v. City of Renton, 38 Wn.2d 82, 228 P.2d 119 (1951). This authority is limited by the GMA's prohibition on annexation of territory located outside UGAs. RCW 35A.14.005; RCW 35.13.005. Once territory is annexed, the territory is subject to the control, supervision, and authority of the annexing municipality. RCW 35.13.010; RCW 35A.14.010.

Comment: The word "contiguous" is often confusing to lawyers and courts. Most think it means adjacent or connected, but in the annexation context it generally means something more like "nearby." No actual connection is required See Erwin S. Barbre, What Land is Contiguous or Adjacent to Municipality so as to be Subject to Annexation, 49 A.L.R.3d 589 (2010) see also Black's Law Dictionary (9th ed. 2009); Webster's Third New International Dictionary (unabridged ed. 2002).

The specific requirements vary depending upon the class of the annexing city or town. There have been substantial changes to the petition method of annexation in the wake of Grant County Fire Protection District No. 5 v. City of Moses Lake, 150 Wn.2d 791, 83 P.3d 419 (2004). Generally, there are now eight methods by which territory may be annexed: (1) the election method initiated by petition; (2) the election method initiated by resolution; (3) the 60 percent petition method; (4) the alternative "hybrid" annexation method; (5) annexation for municipal purposes; (6) annexation of federally owned territory; (7) annexation of unincorporated islands of territory (code cities only); and (8) boundary line adjustments. These are discussed in §7.3(1)-(8), below.

By whatever method an annexation is commenced, once it is submitted to the legislative body of the annexing city or town, other cities and towns are precluded from annexing any of the territory unless (1) a boundary review board modifies the proposed annexation and removes the territory; (2) a boundary review board or county annexation review board rejects the proposed annexation; or (3) the legislative body of the city or town, or the voters if the annexation is submitted to an election, reject the proposed annexation. RCW 35.13.176; RCW 35A.14.231.

(1) Election method, initiated by petition

Annexation may be instituted by a petition from residents within the territory proposed for annexation, upon which all residents within the subject territory will subsequently vote.

(a) Initiated by 20 percent petition—first- and second-class cities and towns

Twenty percent of the qualified voters residing in contiguous territory who voted at the last election may commence annexation by filing a petition with the board of county commissioners. RCW 35.13.020. There is some uncertainty as to the next step for a 20 percent petition. RCW 35.13.025 previously required that the petition first be submitted to the county prosecuting attorney, who had 21 days either to certify or to refuse to certify the petition. In 1989, however, the legislature repealed RCW 35.13.025, Laws of 1989, ch. 351, §10, but did not amend RCW 35.13.020 and its reference to the requirements of RCW 35.13.025.

Accordingly, the next step is for the initiators to file the petition with the legislative body of the city or town to which annexation is proposed. "Legislative body" means the city council when referring to the power to adopt resolutions and means the city council and mayor when referring to the power to adopt an ordinance. See State ex rel. Bowen v. Kruegel, 67 Wn.2d 673, 409 P.2d 458 (1965). Within 60 days from the date the petition was presented, the legislative body must enter a resolution and notify the petitioners, either approving or rejecting the proposed annexation. The legislative body may require that the annexed territory be taxed and assessed for the outstanding indebtedness of the city or town, and may also require that a comprehensive plan for the annexed territory be adopted simultaneously upon approval. See Barrie v. Kitsap Cnty., 93 Wn.2d 843, 613 P.2d 1148 (1980) (holding that simultaneous adoption of a comprehensive plan and corresponding zoning is not arbitrary and capricious); see also RCW 35.13.177(authorizing preparation of comprehensive plan for area to be annexed); RCW 35.13.178 (notice and public hearing requirements on comprehensive plan for proposed annexation). Approval of the legislative body is a condition precedent for submission of the petition to the board of county commissioners or council.

The petition must include (1) a description of the boundaries of the territory proposed to be annexed, (2) the number of voters residing in the territory, (3) any provisions regarding the assumption of indebtedness or the simultaneous adoption of a comprehensive plan, and (4) a call for an election of qualified voters. RCW 35.13.030.

After the annexation is approved by the city or town, the petition is submitted to the county legislative authority. Notice of the proposed annexation must also be filed with the boundary review board, if one has been established in the county, or with the county annexation review board pursuant to RCW 35.13.171 in counties without a boundary review board. Notice to the county annexation review board must be given within 30 days after the petition is filed with the county. RCW 35.13.171. Note that although a county annexation review board will always review the proposed annexation unless it is exempt (territory of less than 10 acres and less than $800,000 in assessed valuation, RCW 35.13.172), a boundary review board will do so only if its jurisdiction is invoked under RCW 36.93.100. See §7.8(3), below. Boundary review boards are discussed in detail in §7.8, below.

The county annexation review board is composed of the mayor of the city or town initiating annexation, the chair of the board of county commissioners, and the director of community development or another person selected by the director. The county annexation review board must be convened within 30 days after the 20 percent petition (or the resolution for annexation, see §7.3(2)(a), below) is filed. RCW 35.13.171; see also RCW 35.13.173 (setting forth the factors that the county annexation review board may consider and requiring that the board's findings set forth all factors that were considered). Note that county annexation review boards, unlike boundary review boards, do not have authority to modify proposed annexations, see RCW 35.13.173, except to remove any territory located outside a designated UGA. See RCW 35.13.005.

If the boundary review board or county annexation review board approves the petition, the board of county commissioners at its next meeting following approval must schedule a hearing for not less than two weeks and not more than four weeks after the board's meeting. RCW 35.13.040. At the hearing, the board of county commissioners must grant the petition if it complies with the law and has been approved by the review board. Id. The board of county commissioners has no discretion to deny the petition if it complies with the law and has been approved. See Meek v. Thurston Cnty., 60 Wn.2d 461, 467, 374 P.2d 558 (1962).

If the legislative body of the county grants the petition, the legislative body of the city or town must then indicate to the county auditor its preference for an election date. A special election pursuant to RCW 29A.04.330 will be held on one of the specified dates that is at least 60 days after the date the city or town indicated its preference. RCW 35.13.060. Only registered voters who have resided in the territory proposed for annexation for at least 90 days are qualified to vote. RCW 35.13.070. Registered voters within the municipality to which annexation is proposed do not have a constitutional right to vote on the annexation. City of Seattle v. State, 103 Wn.2d 663, 694 P.2d 641 (1985).

Notice of the election must be posted in four public places within the territory proposed for annexation for at least two weeks before the election and published, pursuant to RCW 29A.52.351, in a newspaper of general circulation in the territory to be annexed. RCW 35.13.080. Posting of notice cannot substitute for publication, and the lack of publication in the territory to be annexed is not remedied by publication in the city to which annexation is proposed. Davis v. Gibbs, 39 Wn.2d 481, 236 P.2d 545 (1951).

A majority of the votes cast is required to approve the proposed annexation, to approve the proposed annexation and the simultaneous adoption of a comprehensive plan, or to approve the annexation and the creation of a community municipal corporation. RCW 35.13.090. A proposed annexation with an assumption of indebtedness can be submitted as either a single ballot proposition or as two separate ballot propositions. If submitted separately, the annexation may be approved by a majority of the votes cast even if the assumption of indebtedness is not approved. If submitted as a single ballot proposition—or if the proposed assumption of indebtedness is submitted as a separate ballot proposition—a majority of at least three-fifths of the voters in the territory is required, and the total number of persons voting must constitute at least 40 percent of those voting in the territory at the last general election, to approve the proposed annexation with the assumption of indebtedness. RCW...